Moravitz v. Baer , 136 Pa. Super. 7 ( 1939 )

Argued April 14, 1939. This action in trespass for damage done to the plaintiffs' building by an automobile backing into it was tried in the county court by a judge without a jury.

The plaintiffs, who were entirely without fault, joined in the action as defendants, Mrs. Blanche S. Baer, the owner of the automobile, and Affiliated Service Stations, Inc., which operated a gasoline and service station adjoining plaintiffs' building and had supplied gasoline to the automobile and was about to assist in the adjustment of the carburetor. The damage to the building was due to the negligence of Mrs. Baer's driver, or of the other defendant's attendant, or of both. The backing of the automobile was caused by the driver reaching into the car from the outside, and turning on the ignition switch, thus starting the motor, while the hand throttle was pulled out and the gear was in reverse. The main point of dispute was as to who had pulled out the throttle, the driver or the attendant.

The trial judge found that the fault lay with Mrs. Baer's driver and not with the service station attendant, and entered judgment accordingly. The court in banc refused to disturb the findings and judgment.

The question was wholly one of fact, to be decided, in this instance, by the trial judge. His findings have the force and effect of the verdict of a jury and will not be disturbed by an appellate court in the absence of clear error, which was not here shown.

Judgment affirmed.